DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-Pvt, USMC
Docket No. MD99-01150

Applicant’s Request

The application for discharge review, received 990825, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing.  The applicant listed American Legion as his representative on the DD Form 293.

Decision

A personal appearance hearing review was conducted in Washington, D.C. on 001108.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity, buy no impropriety in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall change to:  UNDER HONORABLE CONDITIONS (GENERAL)/Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (EQUITY ISSUE)  This former member opines that a drug problem, developed during his second enlistment, impaired his ability to serve and contributed to his misconduct of record.

2.  (EQUITY ISSUE)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9, as it pertains to post-service conduct, in assessing the merits of his application..

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
VA Discharge Summary dated June 20, 1994
Police Record Check dated Oct 11, 2000
Letter of Reference from Mr. J_____ dated Oct 13, 2000
Letter of Reference from Ms. C____ dated Oct 17, 2000
Letter of Reference from Mr. H_____ undated

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USMC		781108 - 811107	HON
	Inactive: USMCR(J)		781026 - 781107	COG

Period of Service Under Review:

Date of Enlistment:  811230		Date of Discharge:  850215

Length of Service (years, months, days):

	Active:  03  01  16
	Inactive:  None

Age at Entry:  19			Years Contracted:  3

Education Level:  11			AFQT:  54

Highest Rank:  Cpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.2 (2)			Conduct:  4.0 (2)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, GCM

Days of Unauthorized Absence:  24 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER CONDITIONS OTHER THAN HONORABLE /Separation in lieu of trial by court-martial, authority:  MARCORSEPMAN Par. 6419.

Chronological Listing of Significant Service Events:

820622:	Counseled for deficiencies in performance and conduct.  [Tardiness from his appointed place of duty.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

821129:	NJP for violation of UCMJ, Article 134:
Specification: Wrongfully have in his possession some amount of marijuana 820825.
Awarded forfeiture of $300.00 per month for 2 months, reduction to LCpl (E-3).  Not appealed.

830315:	Applicant informed eligible but not recommended for promotion to Cpl because of recent NJP.

830620:	Counseled for deficiencies in performance and conduct.  [Unsatisfactory conduct and his continued minor infractions of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

830628:	NJP for violation of UCMJ, Article 86 (4 specs):
Specification 1: Absent from unit 1030 to 1340, 830616.
Specification 2: Absent from his appointed place of duty 0330 to 0456, 830617.
Specification 3: Absent from appointed place of duty 0730-1215, 830621.
Specification 4: Absent from appointed place of duty 0730, 830527 to 1023, 830527.
Awarded forfeiture of $175.00 per month for 1 month, restriction and extra duties for 14 days.  Not appealed.

830715:	Counseled for deficiencies in performance and conduct.  [Placed on weight control.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

831213:	Applicant informed not recommended for promotion to Cpl for the month of Feb.  Shows a lack of initiative and desire.

840430:	Counseled for deficiencies in performance and conduct.  [Frequent involvement military/civilian.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

840504:	Applicant to unauthorized absence 1800, 4May84.

840529:	Applicant from unauthorized absence 1439, 29May84 (24 days/S).

840531:	Counseled for deficiencies in performance and conduct.  [Frequent involvement military/civilian, drug conviction, unauthorized absence, unable to follow orders, lack of attention to duty, failure to obey regulations, lackadaisical attitude, poor performance, unprofessional and immature attitude, misconduct documented by officer hours.] Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

840620:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 134 (3 specs).
	Specification 1: Possession of marijuana.
	Specification 2: Use of marijuana
	Charge II: violation of the UCMJ, Article 86
	Specification: Unauthorized absence.
	Finding: to Charge I and II and the specifications thereunder, guilty.
	Sentence:  Forfeiture of $397.00, confinement at hard labor for 28 days, reduced to Pvt (E-1).
	CA action 840620: Sentence approved and ordered executed.

840620:	Applicant to confinement.

840713:	Applicant from confinement.

840807:	Applicant assigned to weight control program.

840822:	NJP for violation of UCMJ, Article 86:
Specification: Fail to go at time prescribed to appointed place of duty 0645, 840820, to wit: muster for CG PFT.
Awarded forfeiture of $88.00 per month for 1 month, restriction and extra duties for 7 days.  Forfeiture and restriction suspended for 2 months.  Not appealed.

840822:	Counseled for deficiencies in performance and conduct.  [Frequent involvement military/civilian, drug conviction, unauthorized absence, unable to follow orders, lack of attention to duty, failure to obey regulations, misconduct documented by office hours.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

840905:	Counseled for deficiencies in performance and conduct.  [Lack of judgement about not arranging ahead of time for his return trip from weekend liberty to CLNC.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

841002:	NJP for violation of UCMJ, Article 86 (4 specs):
Specification 1: Fail to go at the time prescribed on 1130, 24Sep84, to wit: remedial PT.
Specification 2: Fail to go at the time prescribed on 1130, 25Sep84, to wit: remedial PT.
Specification 3: Fail to go at the time prescribed on 1130, 26Sep84, to wit: remedial PT.
Specification 4: Fail to go at the time prescribed on 1130, 1Oct84, to wit: remedial PT.
Awarded Restriction and extra duties for 7 days.  Restriction and extra duty suspended for 2 months.  Not appealed.

841002:	Counseled for deficiencies in performance and conduct.  [Frequent involvement military/civilian, drug conviction, frequent tardiness, unable to follow orders, failure to obey regulations, misconduct documented by office hours.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.  

841010:	Vacate suspended restriction and extra duty for 7 days awarded at NJP dated 840822.

841217:	NAVDRUGLAB, Norfolk, VA reports urine sample received 6Dec84 tested positive for THC.

850212:	Applicant notified of intended recommendation for discharge under condition other than honorable by reason of misconduct due to the commission of a serious offense as evidenced by wrongfully use marijuana.  (Extracted from discharge package found in previous casefolder.  Xerox pages to include in SRB.)

850212:	Applicant, having consulted with counsel certified under UCMJ Art 27b, requested discharge for the good of the service to escape trial by court- martial.  In the request the applicant noted that his counsel had fully explained the elements of the offenses for which he was charged and that he understood the elements of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that characterization of service would be under other honorable conditions.  The applicant admitted guilt to the following violations of the UCMJ: Article 112A: Wrongfully use marijuana, which showed positive on a unit sweep urinalysis test conducted 3 Dec 1984.

850213:	SJA review determined the case sufficient in law and fact.

850214:	GCMCA [Commanding General, 2d Marine Division, FMF, Camp Lejeune] determined that applicant had no potential for further service, that separation in lieu of trial by court-martial was in the best interest of the service, and directed discharge under conditions other than honorable by reason of conduct triable by courts-martial.

870512:	NDRB documentary record review Docket Number MD87-01031 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 850215 under conditions other than honorable in lieu of trial by court-martial (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, and in conjunction with the factors listed in paragraph 9.3 of reference (a), it was determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  

In the applicant’s issue 1, the Board does not accept drug abuse as a factor sufficient to exculpate the applicant from the consequences of his misconduct.  The applicant must accept the consequences of his misconduct.  No relief will be granted based on this issue. 

In the applicant’s issue 2, the Board took into account the member’s post-service conduct to include letters of recommendation, drug rehabilitation documentation and testimony from the applicant substantiating a drug free lifestyle and continued involvement with his community.  Based on the applicant’s issue 2 and as stated in the first paragraph, relief is granted.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6419, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16C), Change 2, effective 15 May 84 until 26 Jun 89.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of marijuana.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023